Opinion
A148062 A148159
01-26-2017
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. Nos. JVSQ14-6111) & JVSQ15-6145
B.M. (Father) appeals the juvenile court's jurisdictional findings and removal orders as to his two-year-old son (L.M.) and one-year-old daughter (B.M.) at the hearings held after the Del Norte County Department of Health & Human Services (Department) filed Welfare and Institutions Code section 387 supplemental petitions. Father contends there is no substantial evidence that his continued custody of the children would likely cause them serious harm. We affirm.
All subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Father and H.O. (Mother) are the parents of L.M. (born in August 2014) and B.M. (born in July 2015). Mother is an enrolled member of the Yurok Tribe and Father is an enrolled member of the Choctaw Nation of Oklahoma.
Mother, who has two older children who do not reside with her, has numerous child welfare referrals for drug use, inappropriate supervision, and domestic violence dating from 2006. Both parents also have a criminal history. Father's criminal history includes convictions dating from 1992 to 2014, including manufacturing and selling controlled substances, reckless driving, possession of a firearm, assault, and receiving stolen property. Detention and Jurisdiction as to L.M.
Mother is not a party to this appeal.
On August 19, 2014, a section 300 petition was filed as to L.M. L.M. had tested positive for amphetamines at birth, and Mother reportedly admitted that she used methamphetamine the day before her son was born. At the time, Father was incarcerated. Father also admitted he had a substance abuse problem. The Department alleged L.M. was at risk of serious physical harm under section 300, subdivisions (b) and (g), due to the parents' drug abuse, the child's positive drug test at birth, and the parents' criminal activity.
On August 21, 2014, the juvenile court ordered L.M. to be detained and placed in out-of-home care.
At the jurisdiction hearing held on September 22, 2014, the juvenile court sustained the petition as amended. Father was granted five hours of supervised visitation per week upon his release from jail.
Disposition
According to the Department's disposition report filed on October 9, 2014, Mother had tested positive for methamphetamines and marijuana on September 30, 2014. She admitted to having a temper and engaging in domestic violence in the past. Father had recently been released from jail and had engaged in services. He had tested negative for drugs.
On October 14, 2014, the Choctaw Nation of Oklahoma filed a notice of intervention.
At the October 31, 2014 disposition hearing, the juvenile court ordered L.M. removed from the custody of his parents. The court found that active efforts were made to prevent the breakup of the Indian family. The parents were granted reunification services. Father was ordered to participate in domestic violence counseling, parenting education, substance abuse treatment, and to submit to drug testing.
On January 16, 2015, the juvenile court granted the Department discretion to authorize the parents to have unsupervised overnight visits. By this time, the parents had progressed to six hours, five days a week, of unsupervised visits. Mother and Father were living together and both were testing clean. They were also both enrolled in parenting classes and were set to graduate. The social worker reported the parents were "doing wonderful" and that they were engaged in all their services. The tribal social worker was also supportive of the parents' progress, noting that both of them had been attending 12-step meetings.
Six-Month Status Review Hearing
The Department's April 10, 2015 status review report indicated Mother relapsed on methamphetamine in early March 2015 and Father had refused a hair follicle test. Overnight visits were temporarily ceased, but the parents had recently reengaged in services and there were no more positive tests for methamphetamine. The department opined that L.M. could safely be returned to his parents with family maintenance services. At a hearing, the juvenile court ordered Father to take a hair follicle test. L.M. was ordered returned to the parents, conditioned on negative drug test results.
On April 18, 2015, Father's hair follicle test came back positive for low amounts of methamphetamines as well as marijuana.
At the April 24, 2015 six-month status review hearing, both the Department and the tribal social worker recommended returning L.M. to the parents' custody with family maintenance services. The juvenile court adopted the Department's recommendations and ordered L.M. returned to his parents. Section 300 petition as to B.M. and First Section 387 Supplemental Petition as to L.M.
On August 27, 2015, the Department filed a section 300 petition as to B.M. The Department alleged that Father had shot out the window of a vehicle while mother was inside the vehicle with B.M.
On August 28, 2015, the juvenile court held a detention hearing. The court did not order B.M. detained at that time.
In a disposition report filed September 8, 2015, the Department indicated that both children were living with Mother in a confidential location.
On September 11, 2015, the Department filed a section 387 supplemental petition as to L.M. and a section 342 subsequent petition as to B.M. Describing the recent incident, the Department reported that Mother had fled the home with B.M. after she and Father were fighting. She initially stated that Father had found her and threatened to kill her, shooting at the window of the vehicle that she and the baby were in. She said the bullet shattered the window of the vehicle, injuring her and covering the baby with broken glass. She claimed she then fled into the woods with the child. Father was arrested. Subsequently Mother recanted, admitting she had confronted Father after he had been using methamphetamine and they began to fight, in part because she suspected his infidelity. She left with B.M. and was picked up by a friend who drove her to his property. Later, Father arrived with L.M. and she grabbed a tool and broke the window of the vehicle she was in while she was holding the baby. She stated that glass went all over her and the baby.
At the time, B.M. was less than one month old.
Father was released from custody on September 14, 2015.
Father admitted that he had been using methamphetamine about two times a week in the past few months. He stated he was worried about his brother, who had shot a gun over their fence and into their property. The brother was threatening him, so he would stay up all night with his friends to protect the property and his family. Mother was stressed by having to take care of B.M. by herself, and would yell, scream, and throw rocks at him. On the night of the incident, she "flipped out," knocking over things in his workshop and taking the baby away without her diaper bag.
On September 14, 2015, the juvenile court ordered both children detained. The children were placed in foster care. The parents both immediately reengaged in services.
On October 2, 2015, the parents submitted on the jurisdiction report and the juvenile court sustained both the section 300 petition as to B.M. and the supplemental section 387 petition as to L.M.
At the October 16, 2015 disposition hearing, the children were again returned to the parents' custody with family maintenance services, in accordance with the Department's recommendations.
Section 387 Supplemental Petitions
On February 19, 2016, the Department filed a section 387 supplemental petition as to L.M. and B.M. The Department reported that both children had tested positive for methamphetamines on February 11, 2016, via a hair follicle test submitted, and Father had tested positive for methamphetamine on January 28, 2016. Additionally, the children had recently been exposed to two incidents of domestic violence. On December 14, 2015, the family was in a car in the McDonald's drive-through when Father allegedly became emotionally abusive towards Mother, who then struck Father in the face, breaking his nose. Mother was arrested. On December 25, 2015, Father allegedly assaulted Mother in his home while the children were present. The resulting injuries were severe enough that Mother sought medical treatment at the hospital. Reportedly, one child was in the Mother's arms and the other child was struck by Father during the incident.
At the February 23, 2016 detention hearing, Father testified that his positive methamphetamine test must have resulted from his cleaning out drugs that his brother had left in their mother's house. The juvenile court ordered the children detained.
In the jurisdiction report filed on March 8, 2016, the Department stated that Mother was employed and had a safe place to stay. Mother was concerned that Father had been using methamphetamine and had exposed the children to it. Father denied exposing the children to drugs and did not know why his test from January was positive. He stated he would no longer submit to drug testing and that he believed the children's positive tests were falsified by the Department. Father also was not in compliance with his batterer's intervention program and had been terminated.
A contested jurisdiction hearing was held on March 21, 2016. After testimony was taken, the court found the previous disposition had not been successful in protecting the children. Allegations that the children had been exposed to drugs and domestic violence were found true and the children were ordered removed from their parents' care. Father filed an appeal from this order.
In a disposition report filed on April 4, 2016, the Department stated that Father's alleged substance abuse problem impaired his ability to provide the children with proper care and supervision and impaired his judgment, noting he had refused to submit to drug testing on several occasions and had tested positive for methamphetamine in January 2016. The Department noted that both parents demonstrate very good parenting skills when they are clean and sober. However, this was the second time that L.M. had tested positive for methamphetamines in his short life, and the Department did not believe it could ensure the children's safety if they remained with their parents. In addition to substance abuse, the parents had a volatile relationship and showed little regard as to how their actions could affect their children.
At the disposition hearing on April 15, 2016, the social worker testified that mother had engaged in a batterer's intervention program and in mental health services. Father was unable to complete a court-ordered hair follicle test because he had shaved his head. Father had engaged in parenting classes but did not want to enroll in a batterer's intervention program because he did not believe he was the perpetrator. Father said he has a medical marijuana card and knew he would test dirty under that program. He also claimed he had to work and did not have time for the program. He walked out of the courtroom before the end of the hearing.
The Department's social worker testified that the batterer's intervention program offered materials for both victims and perpetrators. --------
An Indian expert witness testified, opining that the children were at risk of serious harm if they remained in the parents' custody. He recommended that the children remain in foster care until the parents could demonstrate a period of sobriety and address their case issues. He further opined that the Department had made active efforts to prevent the breakup of the family.
The juvenile court found by clear and convincing evidence that the children should be removed from their parents' custody. The parents were granted reunification services. Father was directed to participate in mental health counseling, enroll in a batterer's intervention program and a substance abuse treatment program, and submit to random drug testing. Father has also appealed from these rulings.
DISCUSSION
On appeal, Father asserts insufficient evidence supported the juvenile court's finding that his continued custody of the children would likely result in serious emotional or physical harm to them. We are not persuaded.
Before the juvenile court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The court's jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.) The juvenile court has broad discretion in crafting dispositional orders to protect a child. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
In cases involving Indian children, section 361.7, subdivision (c) provides: "No foster care placement . . . may be ordered in the proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of a qualified expert witness, . . . that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child."
We review the juvenile court's dispositional findings to determine whether they are supported by substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
In the present case, one of the Department's primary concerns was domestic violence. Due to this concern, Father's case plan included the following objective: "[Father] will participate in the Yurok Tribe Batterer's Intervention Program (BIP) to learn how his emotions of pain, fear, sadness, and hurt manifest into emotion of anger and how to end the cycle of anger and abuse." Father refused to participate in the BIP because he believed he was a victim and not a perpetrator. Additionally, he did not want to abstain from marijuana in order to pass the drug testing requirements of the Yurok program that the Department had deemed appropriate for him. And while he asserted that he was the victim, the evidence established that he was an active participant in the domestic violence dynamic in that he would verbally abuse Mother to the point where she became physically violent, knowing that she had this propensity. There also was some evidence that he had engaged in domestic violence against Mother. That he would engage in these types of behaviors in the children's presence is sufficient evidence of the risk of harm, specifically, the potential for accidental physical injury.
Father stresses that he contacted the police and the Department with respect to the reported domestic violence episodes, and had obtained a restraining order against Mother. He notes that the couple no longer lives together. He also claims he was willing to complete a drug abuse program, engage in domestic violence counseling, and participate in parenting courses and individual counseling. However, his history of noncompliance, both with the BIP and with court-ordered substance abuse requirements, is evidence supporting the juvenile court's orders. Father's lengthy criminal history, combined with his unwillingness to address the family's domestic violence dynamic, supports the conclusion that the children would be at risk while in his custody.
The other primary concern from the outset of this case was the parents' history of drug abuse. Father, in particular, had recently tested positive for methamphetamine and both children had also tested positive, indicating that they were being exposed to methamphetamine. As to L.M., it was clear that the test result could not have been based on in utero exposure. Father was resistant to addressing this problem, notably shaving his head just prior to a court-ordered hair follicle test.
Father asserts that despite their positive drug tests, the children "were observed to be happy, healthy and bonded to [both parents]." He relies heavily on the testimony of the children's pediatrician, who noted they did not exhibit physical signs of drug exposure during their exams. While the children were not currently experiencing symptoms of drug withdrawal, it is disturbing that they had both been exposed to methamphetamine in the home to the extent that they would test positive. Moreover, Mother had tested negative for methamphetamine since the end of March 2015, 11 months prior to the children's positive test. This suggests that they were exposed to drugs while in Father's care. That Father essentially refused to comply with the court's drug testing requirements after these test results were established further supports the conclusion that the children could not safely remain in his care.
Substantial evidence thus demonstrates that Father had made insufficient progress towards meeting his case plan objective in the two areas of greatest concern to the Department: prevention of domestic violence and cessation of drug use. Father does not contend that the Department failed to offer reasonable services or failed to make active efforts to prevent removal. Instead, the evidence indicates that he was not following through with the Department's referrals.
The juvenile court made its finding after considering all the evidence and observing all the witnesses, including Father, and assessing their credibility. There was no dispute that the parents loved their children and that they demonstrated good parenting skills when they were clean and sober. However, the serious issues that initially brought the children to the attention of the court remained to be fully addressed. We have no difficulty concluding, on this record, that substantial evidence supports the court's finding a substantial risk of harm to the children if they were to be returned to Father's custody.
DISPOSITION
The orders are affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.